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Faulkner v. United States

United States Court of Appeals, Eighth Circuit

June 7, 2019

Alexander Faulkner Petitioner - Appellant
v.
United States of America Respondent - Appellee

          Submitted: March 14, 2019

          Appeal from United States District Court for the District of Minnesota- Minneapolis

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          GRASZ, Circuit Judge.

         Alexander Faulkner appeals the district court's[1] denial of his motion to vacate his sentence under 28 U.S.C. § 2255, arguing his prior conviction for Indiana burglary did not justify a sentence enhancement under the Armed Career Criminal Act ("ACCA"). We affirm.

         I. Background

         Faulkner was convicted in 2015 of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court imposed an enhanced sentence of 280 months of imprisonment after finding Faulkner had previously been convicted of four qualifying predicate offenses under the ACCA: a 1982 attempted burglary in Illinois, a 1984 burglary in Indiana, and two 1996 federal drug crimes. On direct appeal, Faulkner challenged the district court's reliance on three of his four predicate convictions in imposing the enhancement - all but his 1984 Indiana burglary conviction. United States v. Faulkner, 826 F.3d 1139, 1147-49 (8th Cir. 2016). During the appeal, the government conceded the 1982 Illinois burglary conviction no longer qualified under Supreme Court precedent. Id. at 1147 (citing Johnson v. United States, 135 S.Ct. 2551 (2015)). But we agreed with the government that Faulkner's previous federal drug convictions were two separate offenses and, combined with his unchallenged 1984 Indiana burglary conviction, still justified the enhancement for having three qualifying offenses under 18 U.S.C. § 924(e). Id. at 1149. We therefore affirmed the sentence. Id.

         Faulkner then filed a motion in 2017 to vacate his sentence under 28 U.S.C. § 2255, challenging for the first time the district court's reliance on his 1984 Indiana burglary conviction when imposing his sentence. The district court denied the motion and concluded Faulkner's challenge was procedurally defaulted because he failed to raise it at trial or on direct appeal. The district court thus found the claim not cognizable unless it fit a miscarriage-of-justice exception. The district court then considered Faulkner's merits arguments and determined, in relevant part, Faulkner's Indiana burglary offense was not broader than the generic offense in light of a recent Seventh Circuit decision rejecting an identical argument in a different case. See United States v. Perry, 862 F.3d 620 (7th Cir. 2017). The district court granted a certificate of appealability, and Faulkner now appeals the denial of his § 2255 motion.

         II. Discussion

         We need not address whether Faulkner's argument regarding his 1984 burglary conviction is defaulted because we agree with the district court on the merits. If a defendant convicted of being a felon in possession of a firearm or ammunition under 18 U.S.C. § 922(g)(1) has at least three previous convictions for a "violent felony" or serious drug offense, "the ACCA increases the range of possible sentences" from a maximum of ten years in prison "to a mandatory minimum of fifteen years." United States v. Naylor, 887 F.3d 397, 399 (8th Cir. 2018) (en banc) (citing 18 U.S.C. § 924(a)(2), (e)(1)). The ACCA expressly defines "violent felony" to include "burglary." 18 U.S.C. § 924(e)(2)(B)(ii). But Faulkner's Indiana burglary conviction counts as ACCA "burglary" only if the elements of this state offense are no broader than (i.e., cover no more conduct than) the elements of the "generic offense." Naylor, 887 F.3d at 399 (quoting Mathis v. United States, 136 S.Ct. 2243, 2247 (2016)). Because neither party disputes Indiana's burglary statute in 1984 "sets out a single (or 'indivisible') set of elements to define a single crime," we apply the categorical approach and "simply compare the [state] statute's elements to those of generic burglary to see if they match." Id. at 400 (quoting Mathis, 136 S.Ct. at 2248).

         "This court reviews de novo the district court's determination that a defendant's prior conviction constitutes a violent felony under the ACCA." Id. at 400 (quoting United States v. Walker, 840 F.3d 477, 489 (8th Cir. 2016)).

         As the Seventh Circuit has observed, the definition of Indiana burglary "is nearly identical to that of 'generic' burglary." Perry, 862 F.3d at 622. "Indiana law defines burglary as 'break[ing] and enter[ing] the building or structure of another person, with intent to commit a felony or theft in it.'" Id. (alteration in original) (quoting Ind. Code § 35-43-2-1).[2] And the Supreme Court has defined generic burglary as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575, 598 (1990). This parity comes as little surprise since the Supreme Court relied for its definition on "the generic sense in which the term is now used in the criminal codes of most States." Id.

         We disagree with Faulkner's argument that Indiana burglary is nonetheless broader than the generic offense simply because the Indiana Supreme Court has construed "structure" in the state statute to include even outdoor, fenced-in areas. See McCovens v. State, 539 N.E.2d 26, 29 (Ind. 1989) (applying state burglary statute to fenced-in area surrounding a business); Gray v. State, 797 N.E.2d 333, 336 (Ind.Ct.App. 2003) (applying the statute to fenced-in car lot at an auto-repair shop). But see Calhoon v. State, 842 N.E.2d 432, 435 (Ind.Ct.App. 2006) (refusing to apply the statute to area only partially enclosed by a fence). The Seventh Circuit's recent decision in Perry rejected an identical argument. See Perry, 862 F.3d at 622-24 (holding because Indiana courts have applied the state burglary statute to breaking and entering into wholly-enclosed fenced-in areas and not curtilage, vehicles, or other movable conveyances, Indiana burglary is no broader than the generic offense). We agree with the Seventh Circuit for the reasons discussed in its well-reasoned opinion. See id.

         Faulkner argues the Seventh Circuit failed to conduct a "close analysis" of Supreme Court precedent allegedly clarifying that "structure" in the generic offense means only "something very akin to a building." It is true the Supreme Court has recognized Congress included burglary as an ACCA predicate offense because "[t]he fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and" another person. Taylor, 495 U.S. at 588 (emphasis added). The Supreme Court has also said the generic meaning of burglary is "practically identical" to an earlier version of the ACCA expressly defining burglary to include entering only into a building.[3]Id. at 598. Finally, the Supreme Court has observed generic burglary "approximates" the Model Penal Code's contemporaneous definition of burglary: i.e., "enter[ing] a building or occupied structure, or separately secured or occupied portion thereof, with [the] purpose to commit a crime ...


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